ARB CASE NO. 04-021
ALJ CASE NO. 2003-AIR-10
DATE: January 8, 2004
In the Matter of:
ANGEL NEGRON,
COMPLAINANT,
v.
VIEQUES AIR LINK, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER GRANTING MOTION FOR LEAVE TO CORRECT CLERICAL ERROR AND RESETTING BRIEFING SCHEDULE
On October 21, 2003, a Department of Labor Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) in this case arising under section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C.A § 42121 (West 2003 Supp. Pamphlet)(AIR 21). Finding that the Respondent, Vieques Air Link, Inc., had retaliated against the Complainant, Angel Negron, in violation of AIR 21's whistleblower protection provisions, the ALJ ordered the Respondent, inter alia, to "Pay to Complainant compensatory damages in the amount of $50,000 for the infliction of the emotional distress…." D. & O. at 24. However, previously in the "Remedies" section of the D. & O., the ALJ had stated:
Therefore, it is determined that Complainant is entitled to $10,000 in compensatory damages for mental anguish and emotional distress. This figure is based on the amount awarded by the Secretary in analogous cases. See Crow, supra,citing Smith v. Littenberg, 1992-ERA-00052, slip op. at 7 (Sec'y Sept. 9, 1995) (deciding that where complainant had secured a higher paying job, $10,000 should be awarded for mental and emotional stress because of discharge); DeFord v. Tennessee Valley Authority, 1981-ERA-00001, slip op. at 4 (Sec'y Apr. 30, 1984) (awarding $10,000 for emotional stress and damage to reputation because of demotion); McCuistion v. Tennessee Valley Authority, 1989-ERA-00006, slip op. at 21-22 (Sec'y Nov. 13, 1991) (awarding $10,000 for emotional distress because of harassment, blacklisting, and discharge).
D. & O. at 22 (emphasis supplied). Thus there was a discrepancy in the ALJ's D. & O. between the amount of damages to which the ALJ found Negron entitled in the "Remedies" section ($10,000) of his decision and the amount of damages he subsequently ordered Vieques to pay ($50,000).
On November 4, 2003, Vieques filed a Petition for Review of the D. & O. with the Administrative Review Board pursuant to 29 C.F.R. § 1979.110(a). On November 19, 2003, the Board issued a Notice of Appeal and Order Establishing Briefing Schedule permitting the parties to submit briefs in opposition to or in support of the ALJ's D. & O.
[Page 2]
On November 19, 2003, the ALJ issued three documents: 1) a Motion for Leave to Correct Clerical Error (ALJ Motion), 2) an Erratum, 3) a Corrected Decision and Order (C. D. & O.). In the Motion, the ALJ requests the Board to permit him to correct a clerical error in the D. & O. as provided in Federal Rule of Civil Procedure 60(a).1 ALJ Motion at 1. As grounds for this motion, the ALJ averred that
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
2 The text the ALJ requested the Board to insert reads:
This figure of $50,000 is justifiable based on the duration and level of mental anguish, emotional distress, and professional harm endured by Complainant. Furthermore, this amount is comparable to recent awards in similar cases.[*] See, e.g., Jones v. EG&G Def. Materials Inc., ARB Case No. 97-129, ALJ Case No. 1995-CAA-00003 (ARB Sept. 29, 1998)(awarding $50,000 for emotional distress based solely on the testimony of the complainant); see also Leveille, supra (awarding $45,000 for mental pain and anguish, and awarding $25,000 for injury to professional reputation); Doyle v. Hydro Nuclear Services,ARB Case Nos. 99-041, 99-042, and 00-012, ALJ Case No. 1989-ERA-00022 (ARB May 17, 2000)(increasing compensatory damage award from $40,000, awarded in 1996, to $80,000 due to the determination that respondent's failure to pay the earlier ordered damages caused additional mental distress during the pendency of the claim): Martin v. The Department of Army, ARB No. 96-131, ALJ Case No. 1993-SDW-00001 (ARB July 30, 1999)(awarding $75,000 for emotional distress): Van Der Meer v. Western Kentucky Univ., ARB Case No. 97-078, ALJ Case No. 1995-ERA-00038 (ARB Apr. 20, 1998)(adopting ALJ's award of $40,000 for embarrassment because of escorted removal from university job even where the complainant suffered little out-of-pocket loss).
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[*] Although in years past, the Secretary of Labor has, on some occasions, awarded lower amounts of compensatory damages, those cases are not as persuasive as the cases decided within the last five to six years, because the older cases were decided under outdated economic conditions. See Hobby v. Georgia Power Co., ARB Case No[s]. 98-166, 98-169, ALJ Case No. 1990-ERA-00030 (ARB Feb. 9, 2001), quoting Leveille v. New York Air National Guard, ARB Case No. 98-079, ALJ Case Nos. 1994-TSC-00003, 4 (ARB Oct. 25, 1999) ("[E]xclusive reliance on damage awards in prior whistleblower cases easily could result in the level of compensatory damages becoming frozen in time, ignoring even such basic factors as inflation – a result that would be inconsistent with the statutory mandate that the victims of unlawful discrimination be compensated for the fair value of their loss.").
ALJ Motion at 2.
3 The text that the ALJ requested the Board to replace states:
This figure is based on the amount awarded by the Secretary in analogous cases. See Crow, supra,citing Smith v. Littenberg, 1992-ERA-00052, slip op. at 7 (Sec'y Sept. 9, 1995)(deciding that where complainant had secured a higher paying job, $10,000 should be awarded for mental and emotional stress because of discharge); DeFord v. Tennessee Valley Authority, 1981-ERA-00001, slip op. at 4 (Sec'y Apr. 30, 1984)(awarding $10,000 for emotional stress and damage to reputation because of demotion); McCuistion v. Tennessee Valley Authority, 1989-ERA-00006, slip op. at 21-22 (Sec'y Nov. 13, 1991)(awarding $10,000 for emotional distress because of harassment, blacklisting, and discharge).
ALJ Motion at 2-3.
4 In a letter dated December 18, 2003, counsel for Respondent requested an internet address for the regulations applicable to the review proceedings in this case. The only applicable regulations are those found at 29 C.F.R. Part 1979. These are available at http://www.gpoaccess.gov/cfr/index.html. The Board does not currently have its own procedural regulations.